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Horton v. Shicker

United States District Court, S.D. Illinois

July 18, 2018

EUGENE HORTON, # C-01581, Plaintiff,



         This matter is before the Court for consideration of Plaintiff's “Motion for Reconsideration of Imminent Danger of Serious Physical Injury Exception” (Doc. 37), filed June 29, 2018. For the reasons explained below, the Motion is DENIED and this case shall be dismissed with prejudice.

         Because Plaintiff has accumulated more than 3 “strikes” by having previous lawsuits dismissed as frivolous, malicious, or for failure to state a claim, he is not eligible to proceed in forma pauperis (“IFP”) in this case unless he demonstrates that he was under imminent danger of serious physical injury at the time suit was filed. (Docs. 33, 35); 28 U.S.C. § 1915(g); see also Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (“the harm must be imminent or occurring at the time the complaint is filed”). On April 30, 2018, this Court concluded that Plaintiff had failed to overcome the imminent danger hurdle, either at the time he filed this case in January 2017, or when he filed his First Amended Complaint (Doc. 9) on April 20, 2017. (Doc. 33). As a result, Plaintiff was ordered to pre-pay the $400.00 filing fee by May 21, 2018 in order to proceed with the case. (Doc. 33). He was also advised that he would be required to file a Second Amended Complaint, but only if he first paid the full filing fee.

         Plaintiff requested, and was granted, an extension of time to July 5, 2018 to pay the filing fee. (Doc. 35). The Court also ordered him to file a Second Amended Complaint by July 5, 2018, if he also paid the filing fee. Plaintiff was warned that if he failed to pay the $400.00 fee in full, this case would be dismissed. (Docs. 33, 35).

         To date, Plaintiff has made no payments toward the $400.00 filing fee in this case. Instead, he filed his Second Amended Complaint (Doc. 36) and soon thereafter filed the instant motion, requesting that the Court to reconsider the denial of IFP status. (Doc. 37). He asserts that the Second Amended Complaint “clearly show[s] a meritable [sic] claim of imminent danger of serious physical injury.” (Doc. 37, p. 1).

         The district court has the ability to reconsider non-final orders, both as an exercise of its own discretion, and pursuant to Federal Rule of Civil Procedure 54(b). See Terry v. Spencer, 888 F.3d 890, 893 (7th Cir. 2018); Diaz v. Indian Head Inc., 686 F.2d 558, 562-63 (7th Cir. 1982) (court may, sua sponte or on motion, correct clear errors of fact or law in an interlocutory order). In that vein and in order to evaluate Plaintiff's contention that he has overcome the 3-strike bar, the Court will examine the Second Amended Complaint.

         The Second Amended Complaint (Doc. 36)

         The Second Amended Complaint omits virtually all the originally-named Defendants and names several new parties. Specifically, it lists as Defendants Louis Shicker, a medical official with the Illinois Department of Corrections (“IDOC”); Dr. Shah (physician at Pinckneyville Correctional Center); Christine Brown (Pinkneyville Healthcare Administrator); John Baldwin and Salvadore Godinez (current and former IDOC Directors, respectively); and Pinckneyville Warden Jaimet. (Doc. 36, pp. 1-2).

         Plaintiff makes the following allegations in the Second Amended Complaint: from June 8, 2016 to the present, he has been incarcerated at Pinkneyville. (Doc. 36, p. 6). Plaintiff was previously incarcerated at the now-closed Tamms Supermax Correctional Center for over 12 years. He claims that Defendants Godinez, Baldwin, Shah, Shicker, and Brown have subjected the class of former Tamms inmates to delays and denial of medical treatment for their serious physical and mental injuries caused or aggravated by their long-term confinement in isolation at Tamms. Id. These Defendants knew that Plaintiff has suffered from hypertension, a hernia, memory loss, and military-related PTSD, both before and after he was moved to Pinckneyville in June 2016. They also knew that delays in providing medical care to Plaintiff would aggravate or prolong his existing injuries, and that depriving him assistance to prepare and file timely grievances would prevent him from accessing the courts. (Doc. 36, pp. 6-7).

         Plaintiff concludes that before and after June 2016, all named defendants created the conditions that cause him to be deprived medical care and reasonable safety, by inadequate and delayed medical treatment and obstruction of his access to the grievance system and the courts, or knew about these wrongs and did nothing to stop them. (Doc. 36, p. 7). As a result, Plaintiff “suffered daily and constant hernia pain, frequent daily uncontrolled and painful life threatening hypertension, and was diagnosed with depression in 2018.” Id. He further claims that each defendant took these actions “in retaliation for Plaintiff being in the class [presumably of former Tamms inmates], under accusation of marijuana abuse.” Id. Finally, Plaintiff asserts that he is under imminent danger of serious physical injury. Id. He seeks unspecified injunctive relief and money damages. (Doc. 36, p. 8).


         As an initial matter, Plaintiff's allegation that he was denied access to the grievance process or to the courts in no way places him in imminent danger of serious physical injury. The remaining allegations about Plaintiff's medical conditions are too general and conclusory to establish that he was in imminent danger of serious physical injury during the relevant time period of January 2017 to approximately April 2017. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Complaint must plead sufficient factual content to state a plausible claim); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (conclusory legal statements are insufficient to state a claim). Simply put, Plaintiff's conclusory claim that he is in imminent danger, unsupported by factual allegations, is not enough to overcome the 3-strike bar.

         This Court recruited counsel for Plaintiff in August 2017. (Doc. 21). Plaintiff's Counsel ably and exhaustively reviewed Plaintiff's voluminous medical records with the help of a consulting expert, and discussed the claims with Plaintiff. At the conclusion of his detailed review, Counsel reported to the Court that he would not file an amended complaint on Plaintiff's behalf under the imminent danger exception for the medical conditions included in the original Complaint. Those conditions included the hypertension, memory loss, hernia, and PTSD described by Plaintiff in his pro se Second Amended Complaint. (Docs. 31, 36). Based on this report and Plaintiff's First Amended Complaint, the Court concluded that Plaintiff had not established that he faced imminent danger of serious physical injury at the time he filed this action or when he submitted the First Amended Complaint. (Doc. 33).

         Nothing in the Second Amended Complaint indicates that the Court erred in denying IFP status to Plaintiff. Instead, the Second Amended Complaint, like Plaintiff's earlier pleadings, fails to set forth facts demonstrating that Plaintiff was in imminent danger of serious physical ...

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